Download Magistrates (Miscellaneous) Amendment Act*2013

No 26 of 2013 assented to 27.6.2013
South Australia
Magistrates (Miscellaneous) Amendment Act 2013
An Act to amend the Magistrates Act 1983; and to make related amendments to the
Coroners Act 2003; the Evidence Act 1929; the Fair Work Act 1994; and the Remuneration
Act 1990.
Contents
Part 1—Preliminary
1
2
3
Short title
Commencement
Amendment provisions
Part 2—Amendment of Magistrates Act 1983
4
5
6
7
Amendment of section 3—Interpretation
Repeal of section 4
Amendment of section 5—Appointment of magistrates
Substitution of section 6
6
8
9
8
10
Removal of magistrate from office
Amendment of section 13—Remuneration of magistrates
Amendment of section 14—Superannuation
Amendment of section 15—Recreation leave
Amendment of section 16—Sick leave
Amendment of section 17—Long service leave
Amendment of section 18—Special leave
Amendment of section 18A—Concurrent appointments and outside employment etc
Amendment of section 19—Determination of rights on transition from other employment
Substitution of section 20
20
22
Tenure of office
Amendment of section 10—Suspension from office
Substitution of section 11
11
13
14
15
16
17
18
19
20
21
Magistrates responsible to Chief Magistrate
Substitution of section 9
9
11
12
Magistracy
Amendment of section 7—Administration of magistracy
Substitution of section 8
Payment of monetary equivalent of leave to personal representative etc
Amendment of section 21—Industrial awards not to affect magistrates
Schedule 1—Related amendments
Part 1—Amendment of Coroners Act 2003
1
Amendment of section 4—Appointment of State Coroner
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Magistrates (Miscellaneous) Amendment Act 2013—No 26 of 2013
Contents
Part 2—Amendment of Evidence Act 1929
2
Amendment of section 60—Sufficiency of notice of action
Part 3—Amendment of Fair Work Act 1994
3
Amendment of section 155B—Conciliation conference
Part 4—Amendment of Remuneration Act 1990
4
Amendment of section 13—Determination of remuneration of judges, magistrates and
certain others
Schedule 2—Statute law revision amendments of Magistrates Act 1983
The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Magistrates (Miscellaneous) Amendment Act 2013.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act
amends the Act so specified.
Part 2—Amendment of Magistrates Act 1983
4—Amendment of section 3—Interpretation
(1)
Section 3, after the definition of the Chief Magistrate insert:
magistrate means a magistrate remunerated by salary in respect of his or her
magisterial office;
(2)
Section 3, definition of stipendiary magistrate—delete the definition
(3)
Section 3, definition of working day—delete the definition and substitute:
working day for a magistrate means a day on which the magistrate would
ordinarily be required to work (assuming he or she were not on leave).
5—Repeal of section 4
Section 4—delete the section
6—Amendment of section 5—Appointment of magistrates
2
(1)
Section 5(2)—delete subsection (2)
(2)
Section 5(4)(b)—delete "if the appointment is to be on a part-time basis—"
No 26 of 2013—Magistrates (Miscellaneous) Amendment Act 2013
Amendment of Magistrates Act 1983—Part 2
7—Substitution of section 6
Section 6—delete the section and substitute:
6—Magistracy
(1)
There will be—
(a)
a Chief Magistrate; and
(b)
a Deputy Chief Magistrate,
appointed by the Governor on the recommendation of the
Attorney-General.
(2)
A person is not eligible for appointment as the Chief Magistrate or
Deputy Chief Magistrate unless he or she is a legal practitioner of at
least 7 years standing.
(3)
The Deputy Chief Magistrate will be taken to have been appointed as
a magistrate (if he or she is not already a magistrate).
(4)
For the purpose of determining whether a legal practitioner has the
standing necessary for appointment under this section, periods of
legal practice and (where relevant) judicial service within and
outside the State will be taken into account.
(5)
Notice of intention to resign an office under this section must be
given to the Attorney-General at least 1 month before the resignation
is to take effect.
8—Amendment of section 7—Administration of magistracy
(1)
Section 7(1)—delete ", subject to the control and direction of the Chief Justice,"
(2)
Section 7(3)—delete subsection (3) and substitute:
(3)
The Chief Magistrate may (without derogating from his or her own
powers) delegate to a magistrate any of the Chief Magistrate's
administrative powers or functions.
9—Substitution of section 8
Section 8—delete the section and substitute:
8—Magistrates responsible to Chief Magistrate
Magistrates are responsible to the Chief Magistrate in relation to
administrative matters and, in particular, are subject to direction by
the Chief Magistrate as to the duties to be performed and the times
and places at which those duties are to be performed.
10—Substitution of section 9
Section 9—delete the section and substitute:
9—Tenure of office
(1)
A person ceases to hold office as a magistrate if—
(a)
the person resigns his or her office; or
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Part 2—Amendment of Magistrates Act 1983
(b)
having attained the age of 55 years—the person retires from
his or her office; or
(c)
the person attains the age of 70 years; or
(d)
in the case of an acting magistrate—the person's term of
office expires; or
(e)
the person is removed from office by the Governor.
(2)
Notice of a magistrate's intention to resign, or retire, from office
must be given to the Attorney-General at least 1 month before the
resignation or retirement is to take place.
(3)
A person who ceases to hold office as a magistrate (otherwise than
by reason of removal from office) may, with the approval of the
Chief Magistrate, sit to hear and determine proceedings previously
part-heard by the person and, for the purposes of those proceedings,
the person will be taken to continue as a magistrate.
11—Amendment of section 10—Suspension from office
Section 10(4)—delete "stipendiary magistrate shall" and substitute:
magistrate will
12—Substitution of section 11
Section 11—delete the section and substitute:
11—Removal of magistrate from office
(1)
An investigation to determine whether proper cause exists for
removing a magistrate from office—
(a)
may be conducted by the Attorney-General on the
Attorney-General's own motion; and
(b)
must be conducted by the Attorney-General at the request of
the Chief Justice (made after consultation with the Chief
Magistrate).
(2)
The Attorney-General may, with the approval of the Chief Justice,
require a magistrate being investigated pursuant to subsection (1)(b),
to undergo 1 or more medical examinations for the purpose of
assisting in determining whether proper cause exists for removing
the magistrate from office.
(3)
Once an investigation under subsection (1) is completed, the
Attorney-General must cause a written report of the investigation to
be prepared and copies of the report to be provided to the Chief
Justice and the Chief Magistrate.
(4)
A written report of the investigation of a magistrate may include
either of the following (if relevant in the particular circumstances):
(a)
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the results of any medical examinations undergone as part of
the investigation;
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Amendment of Magistrates Act 1983—Part 2
(b)
a statement as to the failure of the magistrate to undergo a
medical examination as required.
(5)
If it appears to the Attorney-General or the Chief Justice (whether
from the results of an investigation conducted under this section or
otherwise) that a judicial inquiry should be held to determine
whether proper cause exists for removing a magistrate from office,
the Attorney-General must apply to the Supreme Court for such an
inquiry (which must be conducted by a single judge of the Supreme
Court).
(6)
If—
(a)
a magistrate is convicted of an indictable offence; or
(b)
it appears from the findings of a judicial inquiry under this
section that proper cause exists for removing a magistrate
from office,
the Attorney-General must apply to the Full Court for a
determination of whether the magistrate should be removed from
office.
(7)
If the Full Court determines, on an application under subsection (6),
that a magistrate should be removed from office, the Governor may
remove the magistrate from office.
(8)
In proceedings before the Supreme Court under this section, the
Attorney-General and the magistrate to whom the proceedings relate
are entitled to appear and be heard.
(9)
Proper cause for removing a magistrate from office exists if—
(a)
the magistrate is mentally or physically incapable of
carrying out satisfactorily the duties of the office; or
(b)
the magistrate is convicted of an indictable offence; or
(c)
the magistrate is incompetent, or guilty of neglect of duty; or
(d)
the magistrate is guilty of unlawful or improper conduct in
the performance of the duties of the office; or
(e)
the magistrate is guilty of conduct that renders the
magistrate unfit to hold office as a magistrate, regardless of
whether that conduct relates to the functions of the office.
13—Amendment of section 13—Remuneration of magistrates
(1)
Section 13(1)—delete subsection (1) and substitute:
(1)
Subject to this section, the Remuneration Tribunal will determine the
rates of remuneration of magistrates, including the Chief Magistrate
and Deputy Chief Magistrate.
(2)
Section 13(1a)—delete "stipendiary"
(3)
Section 13(1b)—delete "stipendiary" wherever occurring
(4)
Section 13(2)—delete subsection (2)
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Part 2—Amendment of Magistrates Act 1983
(5)
Section 13(5)—delete subsection (5) and substitute:
(5)
In this section—
remuneration means salary, or salary and allowances.
14—Amendment of section 14—Superannuation
Section 14—delete "stipendiary"
15—Amendment of section 15—Recreation leave
(1)
Section 15(1)—delete "stipendiary magistrate shall be entitled to twenty" and
substitute:
magistrate is entitled to 20
(2)
Section 15—delete "stipendiary" wherever occurring
16—Amendment of section 16—Sick leave
(1)
Section 16(1)—delete subsection (1) and substitute:
(1)
(2)
Subject to this section, a magistrate is entitled to 12 working days
sick leave in respect of each completed year of service.
Section 16—delete "stipendiary" wherever occurring
17—Amendment of section 17—Long service leave
(1)
Section 17(1)—delete subsection (1) and substitute:
(1)
(2)
A magistrate is entitled to long service leave calculated as follows:
(a)
in respect of the first 10 years of service—90 days leave;
(b)
in respect of each subsequent year of service up to and
including the fifteenth year of service—9 days leave;
(c)
in respect of each subsequent year of service
thereafter—15 days leave.
Section 17—delete "stipendiary" wherever occurring
18—Amendment of section 18—Special leave
Section 18—delete "stipendiary" wherever occurring
19—Amendment of section 18A—Concurrent appointments and outside
employment etc
Section 18A—delete "stipendiary" wherever occurring
20—Amendment of section 19—Determination of rights on transition from
other employment
Section 19(1)—delete "stipendiary"
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Amendment of Magistrates Act 1983—Part 2
21—Substitution of section 20
Section 20—delete the section and substitute:
20—Payment of monetary equivalent of leave to personal
representative etc
(1)
If a magistrate dies without having taken all the recreation leave and
long service leave to which he or she is entitled under this Act, the
monetary equivalent of such leave standing to his or her credit on the
date of his or her death is payable as if it were a debt that had
become payable to the magistrate immediately before his or her
death.
(2)
If a magistrate dies before becoming entitled to long service leave,
but after completing 7 or more years service, the monetary sum
representing pro rata long service leave to which he or she would
have been entitled if he or she had resigned on the date of his or her
death is payable as if it were a debt that had become payable to the
magistrate immediately before his or her death.
(3)
The Attorney-General has complete discretion to direct that the
whole or a part of an amount payable under subsection (1) or (2) is to
be paid to a dependant of the deceased magistrate or divided between
persons who are dependants of the deceased magistrate.
(4)
The Attorney-General may refuse to give a direction under
subsection (3) unless such indemnities or undertakings as the
Attorney-General thinks necessary are given.
(5)
No action lies against the Crown, the Attorney-General or any other
person representing the Crown in respect of a payment made
pursuant to subsection (3).
(6)
Nothing in this section relieves a person receiving money paid
pursuant to subsection (3) from any liability to account for or apply
such money in accordance with law.
(7)
In this section—
dependant means a person who is wholly or partly dependent on the
earnings of the magistrate at the time of the magistrate's death.
22—Amendment of section 21—Industrial awards not to affect magistrates
Amendment of section 21—delete "stipendiary"
Schedule 1—Related amendments
Part 1—Amendment of Coroners Act 2003
1—Amendment of section 4—Appointment of State Coroner
Section 4(3)—delete "stipendiary"
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Magistrates (Miscellaneous) Amendment Act 2013—No 26 of 2013
Schedule 1—Related amendments
Part 2—Amendment of Evidence Act 1929
2—Amendment of section 60—Sufficiency of notice of action
Section 60—delete "the judge, commissioner, stipendiary or special magistrate, or
justice of the peace presiding" and substitute:
the person presiding
Part 3—Amendment of Fair Work Act 1994
3—Amendment of section 155B—Conciliation conference
Section 155B(2)—delete "stipendiary"
Part 4—Amendment of Remuneration Act 1990
4—Amendment of section 13—Determination of remuneration of judges,
magistrates and certain others
Section 13(i) to (l)—delete paragraphs (i) to (l) inclusive
Schedule 2—Statute law revision amendments of Magistrates
Act 1983
Provision amended
How amended
Section 5(1)
Delete "upon" and substitute:
on
Section 5(1)
Delete "he" and substitute:
the Governor
Section 5(3)
Delete "shall" wherever occurring and substitute in
each case:
will
Section 5(3)
Delete "his" first occurring
Section 5(3)
Delete "his" second occurring and substitute:
the
Section 5(5)
After "he" insert:
or she
Section 7(2)
Delete "his" and substitute:
the
Section 10(2)
Delete subsection (2) and substitute:
(2)
Section 10(3)
Delete "shall" and substitute:
may
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If a magistrate is suspended from
office under this section, he or
she must be served with notice of
the suspension.
No 26 of 2013—Magistrates (Miscellaneous) Amendment Act 2013
Statute law revision amendments of Magistrates Act 1983—Schedule 2
Provision amended
How amended
Section 10(3)(a)
Delete "he" and substitute:
the magistrate
Section 10(5)
Delete "shall" and substitute:
will
Section 12
Delete "shall" and substitute:
may
Section 13(1a)
Delete "shall be" and substitute:
is
Section 13(3)
Delete "shall" and substitute:
may
Section 13(4)
Delete "shall be paid out of the General Revenue of
the State" and substitute:
will be paid out of the Consolidated
Account
Section 15(2)
Delete "shall" and substitute:
will
Section 15(3)
Delete "shall" and substitute:
will
Section 15(4)
Delete "shall" and substitute:
may
Section 15(5)
Delete "shall" and substitute:
may
Section 15(5)
After "his" insert:
or her
Section 15(6)
Delete "shall" and substitute:
must
Section 15(7)
Delete subsection (7) and substitute:
(7)
If a magistrate fails to take
recreation leave to which the
magistrate is entitled at or within
a time required or approved by
or under this section, the
magistrate will cease to be
entitled to the leave.
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Magistrates (Miscellaneous) Amendment Act 2013—No 26 of 2013
Schedule 2—Statute law revision amendments of Magistrates Act 1983
Provision amended
How amended
Section 15(8)
Delete subsection (8) and substitute:
(8)
Section 16(2)
If a person ceases for any reason
to be a magistrate before taking
recreation leave to which the
person is entitled under this
section, the person is entitled, in
lieu of that leave, to the
monetary equivalent of that leave
standing to his or her credit on
the date on which he or she
ceased to be a magistrate.
Delete "shall accrue" and substitute:
accrues
Section 16(3)
Delete "shall" and substitute:
will
Section 17(2)
Delete subsection (2) and substitute:
(2)
Section 17(3)
A magistrate may, if the
magistrate so elects, take leave to
which he or she is entitled under
this section at half his or her
ordinary remuneration and, in
that event, the magistrate will be
entitled to twice the number of
days leave to which he or she
would otherwise have been
entitled.
Delete "shall" and substitute:
must
Section 17(4)
Delete "shall" and substitute:
will
Section 17(5)
Delete "Where" and substitute:
If
Section 17(5)
After "he" wherever occurring, insert in each case:
or she
Section 17(5)
Delete "shall be entitled" and substitute:
is entitled
Section 17(5)
Delete "his" wherever occurring
Section 17(6)
Delete "Where" and substitute:
If
Section 17(6)
Delete "he" wherever occurring and substitute in
each case:
the person
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No 26 of 2013—Magistrates (Miscellaneous) Amendment Act 2013
Statute law revision amendments of Magistrates Act 1983—Schedule 2
Provision amended
How amended
Section 17(6)
Delete "shall be" and substitute:
is
Section 17(6)
Delete "his"
Section 18(4)
Delete "shall count" and substitute:
counts
Section 19(1)
Delete "Where" and substitute:
If
Section 19(2)
Delete "shall have" and substitute:
has
Section 19(3)
Delete "upon" and substitute:
subject to
Section 21
Delete "shall be made under the Industrial
Conciliation and Arbitration Act 1972" and
substitute:
may be made under the Fair Work
Act 1994
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